Comments on: Water management planning and the Crown’s duty to consult and accommodate: the Court of Appeal rejects First Nations’ application for judicial review of the South Saskatchewan Water Management Plan http://ablawg.ca/2010/05/07/water-management-planning-and-the-crown%e2%80%99s-duty-to-consult-and-accommodate-the-court-of-appeal-rejects-first-nations%e2%80%99-application-for-judicial-review-of-the-south-saskatchewan-water-ma/ Tue, 22 May 2012 09:36:17 +0000 http://wordpress.org/?v=2.3.3 By: Shaun Fluker http://ablawg.ca/2010/05/07/water-management-planning-and-the-crown%e2%80%99s-duty-to-consult-and-accommodate-the-court-of-appeal-rejects-first-nations%e2%80%99-application-for-judicial-review-of-the-south-saskatchewan-water-ma/#comment-93773 Shaun Fluker Sat, 08 May 2010 06:10:32 +0000 http://ablawg.ca/2010/05/07/water-management-planning-and-the-crown%e2%80%99s-duty-to-consult-and-accommodate-the-court-of-appeal-rejects-first-nations%e2%80%99-application-for-judicial-review-of-the-south-saskatchewan-water-ma/#comment-93773 The Crown's analogous reference to the rule that the duty of fairness does not apply to legislative functions (Inuit Tapirisat [1980] 2 SCR 735 and Reference Re Canada Assistance Plan [1991] 2 SCR 525) does seem very problematic here. Besides the enactment of primary legislation, it isn't terribly clear in the jurisprudence what exactly a legislative function is. Just because it is the Crown acting does not necessarily mean it is a legislative function. Is the enactment of subordinate legislation exempt from the duty of fairness? Policy enactments? Ministerial decisions? General application is a good indicia, but I wouldn't rest my entire argument on that. Particularly where it is possible that one can successfully characterize the function (legislative or otherwise) as affecting specific rights or interests - making it more likely that a duty of fairness will apply (For example, Homex Realty [1980] 2 SCR 1011 and more recently in Alberta - Airport Self Storage, 2008 ABQB 12 where the duty of procedural fairness was ruled to apply to the passage of a municipal bylaw). Moreover, many courts simply gloss over the threshold question on the application of the duty of fairness, and presume that legislative functions attract at least a minimal amount of content under the duty of fairness (eg. the right to advance notice) - other than the paradigm case of enacting primary legislation. All of this to say that I agree with your critique here Nigel. If the legislative function exemption from the common law duty of fairness has doubtful application to the enactment of a plan in administrative law, then its application to provide the Crown with an exemption from the duty to consult in constitutional matters seems beyond the realm of legal outcomes. The Crown’s analogous reference to the rule that the duty of fairness does not apply to legislative functions (Inuit Tapirisat [1980] 2 SCR 735 and Reference Re Canada Assistance Plan [1991] 2 SCR 525) does seem very problematic here.

Besides the enactment of primary legislation, it isn’t terribly clear in the jurisprudence what exactly a legislative function is. Just because it is the Crown acting does not necessarily mean it is a legislative function. Is the enactment of subordinate legislation exempt from the duty of fairness? Policy enactments? Ministerial decisions? General application is a good indicia, but I wouldn’t rest my entire argument on that. Particularly where it is possible that one can successfully characterize the function (legislative or otherwise) as affecting specific rights or interests - making it more likely that a duty of fairness will apply (For example, Homex Realty [1980] 2 SCR 1011 and more recently in Alberta - Airport Self Storage, 2008 ABQB 12 where the duty of procedural fairness was ruled to apply to the passage of a municipal bylaw). Moreover, many courts simply gloss over the threshold question on the application of the duty of fairness, and presume that legislative functions attract at least a minimal amount of content under the duty of fairness (eg. the right to advance notice) - other than the paradigm case of enacting primary legislation.

All of this to say that I agree with your critique here Nigel. If the legislative function exemption from the common law duty of fairness has doubtful application to the enactment of a plan in administrative law, then its application to provide the Crown with an exemption from the duty to consult in constitutional matters seems beyond the realm of legal outcomes.

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